Citation Nr: 9920430
Decision Date: 07/23/99 Archive Date: 07/28/99
DOCKET NO. 97-23 783 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Wilmington, Delaware
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to service connection for a gunshot wound to
the right leg.
3. Entitlement to an increase in the 10 percent evaluation
currently assigned for service-connected residuals of a scar
of the right eye.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from May 1942 to September
1945.
This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from an April 1997 decision by the
RO which denied service connection for tinnitus and a gunshot
wound to the right leg, and an increased rating for a scar on
the right eye, then rated noncompensable. A personal hearing
was conducted at the RO in September 1997. In December 1997,
the hearing officer assigned an increased rating to 10
percent for the scar on the right eye, and denied service
connection for the remaining two issues. In July 1998, the
Board remanded the appeal to the RO for additional
development.
By rating action in April 1999, service connection was
established for ectropion and lagophthalmos, both secondary
to the service-connected scar on the right eye. Each
disability was rated 10 percent disabling, effective from
April 2, 1997. The veteran was notified of this decision and
his representative indicated in an Informal Hearing
Presentation in June 1999, that these issues were no longer
being appealed.
Lastly, in the July 1998 remand, the Board noted that the
veteran's claim of service connection for visual disturbance
had not been considered. The Board instructed the RO to have
the veteran examined and requested that the examiner express
an opinion as to the etiology and date of onset of any
identified visual disturbance. It does not appear that any
further action was undertaken to adjudicate the issue;
accordingly, this matter is brought to the attention of the
RO for appropriate action.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran was authorized to wear the Combat Infantry
Badge and was awarded a Purple Heart for injuries sustained
in combat with the enemy.
3. There is evidence that the veteran was exposed to
acoustic trauma in service as a result of combat related
experiences; there is competent medical evidence that relates
his current tinnitus to service.
4. It is at least as likely as not that the retained
metallic fragments in the veteran's right leg are residuals
of a gunshot wound during wartime service.
5. The scar on the veteran's right eye is moderately to
severely disfiguring and is productive of a marked and
unsightly deformity of the lower eyelid.
CONCLUSIONS OF LAW
1. The veteran's tinnitus was incurred in service.
38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R.
§ 3.303 (1998).
2. A gunshot wound of the right leg was incurred in service.
38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R.
§ 3.303 (1998).
3. The schedular criteria for the assignment of an increased
rating to 30 percent for service-connected residuals of a
scar of the right eye are met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.118, Part IV, including
Diagnostic Code 7800 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Background
The service medical records show that the veteran was treated
for an unexplained problem with his eyelids in March 1943,
and had a chalazion of the right lower lid incised and
curetted in May 1945. The veteran's separation examination
in September 1945 indicates that his right eye was injured by
a flying missile. The service medical records, including his
separation examination in September 1945 were negative for
any abnormalities or diagnoses referable to a gunshot wound
to the right leg or any ear problems, including tinnitus.
The veteran's Enlistment Records and Report of Separation in
September 1945, indicated, in part, that he was a radio
operator with an infantry unit, was authorized to wear the
Combat Infantry Badge, and was awarded a Purple Heart.
VA examinations in December 1945, April 1950, and April 1955
were negative for any complaints, abnormalities, or diagnoses
referable to any hearing problems, including tinnitus, or any
residuals from a gunshot wound to the right leg. Examination
of the veteran's ears in April 1950 and April 1955 were
normal.
By rating action in January 1996, the RO determined that
there was a pending claim of service connection for residuals
of an injury to the veteran's right eye since 1945. The RO
granted service connection for residuals of a scar of the
right eye and assigned a noncompensable rating, effective
from September 4, 1945. The veteran was notified of this
decision and did not appeal.
When examined by VA in April 1997, the veteran reported that
he sustained a gunshot wound to his right eye during combat
in World War II. He reported that the wound was treated and
he was returned to his unit, but that it became infected and
he was sent back to the hospital for additional treatment.
The veteran complained that he can not close his right eye
and that the eye has been tender ever since the initial
injury. On examination, there was evidence of ectropion of
the right lower eyelid. There was significant congestion of
the palpebral conjunctiva but no discharge from the eye. The
diagnoses included ectropion of the right lower eyelid and
shrapnel injury to the right lower eyelid with removal of
shrapnel. The examiner noted that there was no evidence of
external facial shrapnel wounds involving the veteran's eyes
or the remainder of his face or neck.
Received and dated in June 1997, was a letter from D. H.
Lubkeman, M.D., to the effect that the veteran had severe
right lower lid ectropion with incomplete closure of the
right eye. Dr. Lubkeman opined that the veteran's old war
injury to the right eye may have contributed to the severity
of the ectropion in the right lower lid. In a similar
statement received in August 1997, Dr. Lubkeman indicated
that the increased soreness and tearing in his right eye was
due to his inservice trauma.
At a personal hearing at the RO in September 1997, the
veteran described problems he has with his right eye and
reported that he had to continually put drops in his eye to
keep it lubricated. He testified that people look at him
"funny" as if he were a "freak" because of his disfiguring
eyelid. The veteran also testified that he was shot in his
right leg by a shotgun-welding farmer while his unit was
advancing on a town in Germany during the war. The veteran
testified that he has had ringing in his ears since his
discharge from service, and that he had reported this to a
number of family physician's, all but one of whom are now
deceased.
A VA outpatient record in July 1997 showed the veteran's
uncorrected visual acuity in the right eye was 20/30. His
pupils were equal, round, regular and reacted to light and
accommodation (PERRLA). Extraocular movements were full,
bilaterally. The assessments included "BCVA 20/20,"
bilaterally, and lid Ectropion right greater than left. The
veteran was given a new prescription for eyeglasses and was
told to return in one year.
In a letter received in August 1998, Dr. G. M. Edmondson
stated, in essence, that he had been treating the veteran
since 1993 for various problems, and recalled that the
veteran complained of ringing in his ears for many years.
Dr. Edmondson indicated that the veteran served in the
infantry during World War II and was exposed to a "great
deal of noise pollution from guns." He opined that the
veteran's exposure to gunfire during service was the
underlying "basis" for his longstanding tinnitus.
Associated with the claims file in September 1998 were
numerous outpatient records from the Wilmington, Delaware VA
Medical Center from 1993 to 1998. These records showed
treatment for various problems and included several eye
examinations conducted approximately every year. The medical
findings on the eye examinations were essentially the same as
reported on the July 1997 eye examination noted above.
Associated with the claims file in October 1998 were numerous
medical records including some duplicate copies, from the
Bath and Wilmington VA Medical Centers showing treatment from
1984 to 1996. Except for the duplicate eye examination
reports, the records showed treatment primarily for medical
problems unrelated to the veteran's current claims.
When examined by VA in March 1999, the veteran reported that
he fractured his right leg when he was 3 years old. He also
reported that he sustained a gunshot wound to his right leg
during World War II and was hit by shrapnel in his left leg
from a mortar explosion at the same time. The veteran
reported that he had no residual symptoms in his left leg,
but had daily stiffness and pain in the right tibia with
changes in the weather or when repositioning his leg. The
veteran stated that he did not seek medical attention for his
right leg injury, but that metallic fragments had worked
there way to the surface of his skin over the years, and that
some pieces still remained in his leg. The examiner
indicated that he had reviewed the claim file and found no
reference to an injury to the veteran's right leg.
On orthopedic examination, the veteran's right hip was stiff
and he could forward flex the right hip to 90 degrees.
Backward flexion was to 0 degrees, with normal abduction and
adduction. Internal rotation was to 0 degrees, and external
rotation was to 25 degrees, with positive Laugier's and
tenderness in the groin. There was no pain or tenderness
about the area of the right lower extremity in the area of
the tibia, and no scars. There was a palpable 2-mm firm,
hard item four inches inferior to the patella at the anterior
tibial spine which was tender and moveable but without
redness. X-ray studies of the right knee revealed no
significant changes when compared with studies in July 1997.
There was no evidence of a fracture or dislocation, and the
knee joint was well preserved. There were metallic foreign
bodies overlying the soft tissues of the proximal calf.
A bone scan in March 1999, revealed four small metallic
foreign bodies projecting in the soft tissue of the proximal
1/3 of the right lower leg. The knee joint and visualized
bones were grossly unremarkable.
The diagnoses included the following: Degenerative joint
disease in the hips and knees with mild adhesive capsulitis;
more on the right than the left. Old healed fracture of the
right tibia with bowing. Status post alleged shrapnel
injuries to both lower extremities, without any symptoms
involving the left lower extremity, and a tiny metal-like
body in the anterior right tibia area. The examiner noted
that the findings, along with the scars were in keeping and
consistent with a shrapnel type injury.
The examiner noted that he had reviewed the claims file and
recorded a history from the veteran. He opined that it was
more likely than not that the metallic bodies were consistent
with a history of a gunshot wound to the right leg, but that
the veteran's right leg symptomatology was related to the
fracture he suffered as a child and not the reported gunshot
injury.
A VA eye examination was conducted in March 1999. At that
time the veteran reported a history of a shrapnel injury to
his right eye during service. On examination, the veteran's
uncorrected visual acuity was 20/30 in the right eye. His
pupils were equal, round, and reactive, and there was no
afferent defect. Extraocular muscles were full and intact.
Refraction revealed an astigmatic refractive error which was
corrected to 20/25 in the right eye. External evaluation
revealed obvious and significant traumatic ectropion in the
right eye (with minimal age related ectropion in the left
eye). The remainder of the slip lamp examination was
unremarkable, except for some early "NS" lens changes.
Intraocular pressures were normal at 13 mm, bilaterally.
Dilated retinal examination showed a healthy "c/d" ration
of .3/.3, clear maculae, and healthy vasculature. Peripheral
examination was negative for holes, tears, and detachments,
bilaterally. The impression was significant ectropion in the
right lower lid consistent with trauma history and symptoms.
The examiner indicated that the veteran should continue
application of artificial tears and ointment to protect and
preserve his eye and vision. Best visual acuity in the right
eye was 20/25.
In response to specific questions posed in the July 1998
Board remand, the examiner stated that it was at least as
likely as not that the ectropion of the right eye had its
onset in service and was etiologically related to the
service-connected injury to the right eye. The examiner also
indicated that the best diagnosis for the veteran's visual
loss of the right eye was exposure keratitis, and that this
was etiologically related to the service-connected eye
injury. He comment that the disfigurement created by the eye
injury caused a functional inability for the eyelid to
properly blink, thereby creating an exposure and desiccation
of the inferior cornea and globe. The examiner noted that
the eye must be continually managed by instillation of
ointment to keep the eye moist and protected. The right eye
scar was superficial, not ulcerated, and was only mildly
tender. However, the examiner stated that the ectropion
created by the right eye scar was moderately to severely
disfiguring, with marked and unsightly deformity of the lower
right eyelid. The examiner stated that he would not
character the disfigurement as an exceptionally repugnant
deformity.
Analysis
As an initial matter, the Board notes that the veteran's
claims for service connection for tinnitus and a gunshot
wound to the right leg are well-grounded within the meaning
of 38 U.S.C.A. § 5107, and that all relevant facts have been
properly developed in accordance with this provision. Murphy
v. Derwinski, 1 Vet. App. 78 (1990). In order for a claim to
be well-grounded, there must be competent evidence of a
current disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the in-service injury or
disease and the current disability (medical evidence).
Caluza v. Brown, 7 Vet. App. 498 (1995).
Additionally, 38 U.S.C.A. § 1154(b) provides as follows:
In the case of any veteran who engaged in
combat with the enemy,... the Secretary
shall accept as sufficient proof of
service-connection of any disease or
injury alleged to have been incurred in
or aggravated by such service
satisfactory lay or other evidence of
service incurrence or aggravation of such
injury or disease, if consistent with the
circumstances, conditions, or hardships
of such service, notwithstanding the fact
that there is no official record of such
incurrence or aggravation in such
service, and, to that end, shall resolve
every reasonable doubt in favor of the
veteran. Service- connection of such
injury or disease may be rebutted by
clear and convincing evidence to the
contrary. The reasons for granting or
denying service-connection in each case
shall be recorded in full.
In this case, the appellant is a combat veteran and was
authorized to wear the Combat Infantry Badge and was awarded
the Purple Heart. There is competent medical evidence that
the veteran has tinnitus and residuals of an injury to the
right leg which is consistent with a gunshot wound; lay
evidence of symptoms during service, and a medical opinion
establishing a nexus to service. Thus, the Board finds that
the veteran has satisfied the elements to establish a well-
grounded claim.
Besides establishing a well-grounded claim pursuant to Caluza
above, the chronicity provisions of 38 C.F.R. § 3.303(b) are
applicable where evidence, regardless of its date, shows that
a claimant had a chronic condition in service, or during an
applicable presumptive period, and still has such condition.
Such evidence must be medical in nature unless it relates to
a condition as to which lay observations may suffice. If
chronicity of symptomatology is not applicable, a claim may
still be well-grounded on the basis of 38 C.F.R. § 3.303(b)
if the condition is noted during service or during an
applicable presumptive period, and if competent evidence,
either medical or lay, depending on the circumstances,
relates the present condition to that symptomatology. Savage
v. Gober, 10 Vet. App. 488 (1997).
Additionally, VA Regulations provide that:
Service connection connotes many factors,
but basically it means that the facts,
shown by evidence, establish that a
particular injury or disease resulting in
disability was incurred coincident with
service in the Armed Forces, or if
preexisting such service, was aggravated
therein. This may be accomplished by
affirmatively showing inception or
aggravation during service or through the
application of statutory presumptions.
38 C.F.R. § 3.303(a) (1998).
Service connection may be granted for any
disease diagnosed after discharge, when
all the evidence, including that
pertinent to service, establishes that
the disease was incurred in service.
38 C.F.R. § 3.303(d) (1998)
Service Connection
Tinnitus
The veteran testified at a personal hearing before the RO
that he has had tinnitus since military service. The veteran
also given a history of combat related exposure to acoustic
trauma that is consistent with the circumstances of his
service as an infantry soldier. In July 1998, a private
physician, Dr. Edmondson, attributed the veteran's complaints
of tinnitus to his history of noise exposure during combat
service.
Once a combat veteran's claim for service connection of a
disease or injury alleged to have been incurred in combat
service is well grounded, then, under section 1154(b), the
claimant prevails on the merits unless VA produces "clear and
convincing evidence" to the contrary - that is, unless VA
comes forward with more than a preponderance of the evidence
against the claim. See Arms v. West, 12 Vet. App. 188
(1999). In the instant case, there is no clear and
convincing evidence that the veteran's tinnitus was due to
any post service noise exposure. Therefore, in light of the
veteran's complaints of tinnitus since service, his
statements with regard to exposure to acoustic trauma during
service, and the fact that a private doctor has related his
tinnitus to noise exposure in service, the Board finds that
service connection for chronic tinnitus is warranted.
Gunshot Wound
of the Right Leg
As noted above, the veteran's service separation record shows
that he served in an Infantry unit during World War II, and
that he received the Purple Heart. This evidence establishes
that he served in combat, and as a combat veteran he can
establish service incurrence of a disease or injury through
credible lay evidence which is consistent with the
circumstances, conditions, or hardships of service, even in
the absence of official record of such incurrence, as is the
case here. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R.
§ 3.304(d) (1998).
The veteran testified that he sustained a gunshot wound to
his right leg during World War II but did not seek medical
attention because his wound was not that severe. The veteran
stated that the unit medic was treating another soldier who's
leg had been blown off from a mortar explosion, and that he
dressed his own wound and continued on with his unit. The
veteran also testified that, over the years, several pellets
had come to the surface and that his family physician would
"pop" them out and then stitch-up his leg. He reported
that the family physicians were deceased and their records
were no longer available.
The current medical evidence of record includes VA diagnostic
studies that show four small metallic foreign bodies in the
veteran's right calf. A VA physician indicated that he had
reviewed the claims file and that the physical findings were
consistent with a gunshot type injury. The examiner opined
that the metallic fragments were, more than likely, incurred
in service.
In weighing the evidence of record in the context of the
veteran's combat service during World War II, the Board
concludes that entitlement to service connection for
residuals of a gunshot wound of the right leg is warranted.
Increased Rating
The Board finds the veteran's claim for an increased rating
is "well grounded" within the meaning of 38 U.S.C.A.
§ 5107(a). The United States Court of Veterans Appeals
(Court) has held that, when a veteran claims a service-
connected disability has increased in severity, the claim is
well grounded. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). The Court has also stated that where entitlement to
compensation has already been established and an increase in
the disability rating is at issue, the present level of
disability is of primary concern. Francisco v. Brown, 7 Vet.
App. 55 (1994).
The Board is satisfied in this case that all relevant facts
have been properly developed. The veteran has undergone a VA
examination, VA outpatient treatment records have been
obtained, and he has provided testimony at a personal hearing
before the RO in September 1997. The record is complete, and
the Board finds that there is no further duty to assist the
veteran in the development of this claim as mandated by 38
U.S.C.A. § 5107(a).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
In addition, the VA has a duty to acknowledge all regulations
which are potentially applicable through the assertions and
issues raised in the record and to explain the reasons and
bases for its conclusion. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). 38 C.F.R. § 4.1 requires that each
disability be viewed in relation to its history, and that
there be emphasis upon the limitation of activity imposed by
the disabling condition. 38 C.F.R. § 4.2 requires that
medical reports be interpreted in light of the whole-recorded
history, and that each disability must be considered from the
point of view of the veteran working or seeking work. These
requirements for evaluation of the complete medical history
of the claimant's condition operate to protect claimants
against adverse decisions based on a single, incomplete or
inaccurate report, and to enable the VA to make a more
precise evaluation of the level of the disability and of any
changes in the condition. Schafrath, 1 Vet. App. at 594. 38
C.F.R. § 4.7 provides that where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned.
The veteran is currently assigned a 10 percent evaluation for
his service-connected residual scar of the right eye under
the provisions of Diagnostic Code 7804. Another applicable
Code which the veteran's disability may be evaluated is DC
7800 which provides that:
Scars, disfiguring, head, face, or neck:
Complete or exceptionally repugnant deformity of one side
of
face or marked or repugnant bilateral
disfigurement............................ 50
Severe, especially if producing a marked and unsightly
deformity of eyelids, lips, or auricles..............................................
30
Moderate;
disfiguring..................................................................
.......... 10
Slight.......................................................
............................................ 0
Note: When in addition to tissue loss and cicatrization
there is marked discoloration, color contrast, or the like,
the 50 percent rating under Code 7800 may be increased to 80
percent, the 30 percent to 50 percent, and the 10 percent to
30 percent. The most repugnant, disfiguring conditions,
including scars and diseases of the skin, may be submitted
for central office rating, with several unretouched
photographs.
When examined by VA in March 1999, the examiner indicated
that while the scar on the right eye was superficial, not
ulcerated, and only mildly tender, the resulting
disfigurement from the scar and resulting ectropion was
moderately to severely disfiguring, with marked and unsightly
deformity of the lower right eyelid. The Board concludes
that the examiner's findings satisfy the criteria for an
increased rating to 30 percent under DC 7800. The examiner
stated that the scar was not exceptionally repugnant.
Accordingly, the Board finds that a rating higher than 30
percent is not warranted.
ORDER
Service connection for tinnitus and for residuals of a
gunshot wound of the right leg is granted.
An increased rating to 30 percent for service-connected
residuals of a scar of the right eye is granted, subject to
VA laws and regulations concerning payment of monetary
benefits.
JEFFREY A. PISARO
Acting Member, Board of Veterans' Appeals